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Appalachian environmental advocates are calling on the Biden administration and congressional leaders to do more to fill cracks in the coal mine cleanup process, fearing a wave of coal company bankruptcies amid the industry’s decline will leave states responsible for unfunded reclamation obligations.

Advocates renewed their call for strengthening mine cleanup requirements during a webinar hosted by the environmental nonprofit Appalachian Voices Thursday highlighting reclamation concerns across the country.

“[W]e really need to think about what is the new regulatory framework for this moment that we find ourselves in,” said Shannon Anderson, staff attorney and organizer for the Powder River Basin Resource Council, a Wyoming-based environmental group.

Rebecca Shelton, director of policy and organizing at the Appalachian Citizens’ Law Center, a Kentucky-based nonprofit law firm that represents coal miners in black lung disability and mine safety claims, said activists had made “little, if any, progress” during meetings with the federal Office of Surface Mining Reclamation and Enforcement under the Biden administration.

Shelton said one of the reasons for that lack of progress could be the administration not yet having named a director for that office 15 months into Biden’s presidency.

Environmental advocates have called on Biden to nominate a director to lead the office, which works with states to oversee mine cleanup.

The White House did not respond to a request for comment on why Biden hasn’t yet nominated a new director and what the time frame could be for him doing so.

Anderson highlighted citizen recommendations for tightening federal regulations that included requiring the Office of Surface Mining Reclamation and Enforcement to ensure that no permit transfer, renewal or modification is approved until a regulator makes sure its reclamation plan and bond are both sufficient.

“There just isn’t a lot of oversight from the regulators about reclamation work on a day-to-day basis at a mine site,” Anderson said.

Another recommendation presented by Anderson was requiring data indicating the financial status of a permittee and any corporate parent, disclosures of outstanding liabilities and a revised estimate of the life of a mine at each permit renewal.

Mine permits issued under the federal Surface Mining Control and Reclamation Act last up to five years but carry a “right of successive renewal” upon their expiration.

“[We’re] specifically looking at making sure that we kind of do an economic check of where the mine is,” Anderson said.

In testimony before the U.S. House Energy and Mineral Resources Subcommittee last year, Appalachian Citizens’ Law Center attorney Mary Varson Cromer lobbied for an amendment eliminating the right of successive renewal for permits under the Surface Mining Control and Reclamation Act and requiring permittees to demonstrate that renewal should be granted.

Mine cleanup proponents point to the coal industry’s long-term decline as the reason for the feds to act quickly.

The number of producing coal mines in the U.S. fell to 551 mines, its lowest number since U.S. coal production peaked in 2008, the U.S. Energy Information Administration reported last year. The decrease marked a 62% decline since 2008.

Appalachian Voices touted an S&P Global Commodity Insights analysis of production and fuel contract data released last month that found that coal plants intending to close by 2030 received 26.9% of U.S. coal production last year.

Sierra Club senior attorney Peter Morgan noted mines are being shuttered without being reclaimed.

“[S]o companies are basically removing all equipment from these sites and leaving them idle,” Morgan said. “What we’re seeing is that regulators are just not prepared to deal with the situation.”

Regulators have failed to require adequate bonding, Morgan said, encouraging lax enforcement to avoid pushing coal companies into bankruptcy and saddling vulnerable surety bond providers and taxpayers with reclamation costs.

Elaine Tanner, program director of Friends for Environmental Justice, a Kentucky-based conservationist group, showed photos capturing the land degradation resulting from mining near her eastern Kentucky house and lamented mudslides and acidic water stemming from past mining.

Drainage ditches and sediment ponds fill up, Morgan said, increasing the risk of landslides.

The West Virginia Department of Environmental Protection admitted in a lawsuit it filed in March 2020 in Kanawha County Circuit Court against ERP Environmental Fund Inc., a coal mining company, that assuming responsibility for reclaiming and remediating all of ERP’s mining sites could potentially overwhelm the state’s special reclamation fund, both financially and administratively.

The department reported the costs of reclaiming and remediating ERP’s sites totaled more than $230 million. ERP laid off all its employees and management as of March 2020 and ceased operations, leaving its mining sites abandoned and public health and safety threatened, according to the department’s lawsuit to appoint a special receiver to assume ERP’s responsibilities.

Last year, a report released by the West Virginia Legislative Auditor’s Office Post Audit Division warned that state mine cleanup funds are nearing insolvency.

The report found state lawmakers and environmental regulators risk letting West Virginia’s mining reclamation program slip into insolvency through gaping holes in statutory and permitting oversight.

The state’s current per-acre coal mining reclamation bond limits may not be enough to guarantee the solvency of the state’s mining reclamation program, the report said.

The audit report noted that one firm alone, Indemnity National Insurance Co., holds 67% of the state’s coal mining reclamation bonds, at $620 million.

Rising reclamation costs have devalued permit bonds since the current bonding limits were established by state code in 2001, the report observed, while the cost of reclamation has increased significantly.

Bonds are set between $1,000 and $5,000 per acre.

A study released by Appalachian Voices last year estimated between 31% and 49% of West Virginia’s total reclamation liability is covered by bonds, projecting the state’s total liability could soar as high as $3.56 billion.

But the study deferred to the June audit report, which offered the even more daunting estimate that bonds cover only 10% of reclamation costs in West Virginia.

The Legislature’s response in the 2022 regular legislative session was to pass Senate Bill 1, a law setting up a private, nonstock mining mutual insurance company with $50 million in taxpayer money to provide an alternative bonding source for coal mine operators.

Proponents say the new law will help guard against a potential spike in bankruptcies that leave the West Virginia’s mine cleanup fund — and state taxpayers — on the hook for coal companies’ unfulfilled mine reclamation obligations.

Opponents of the new law say it will unfairly burden taxpayers while failing to address long-term issues behind the state’s potential multibillion-dollar reclamation liabilities.

The federal Infrastructure Investment and Jobs Act enacted in November allots $11.29 billion for abandoned mine land cleanup funding nationwide over 15 years.

But what would give that funding more value, advocates say, are federal and state reclamation and bonding requirements that promote reclaimed mine sites rather than discouraging cleanup law enforcement.

“[T]hose problems are magnified when it’s the entire industry facing this financial difficulty, because the pressure on the regulators is greater,” Morgan said.

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc

.com. Follow @Mike__Tony on Twitter.

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